United States Court of Appeals,
Eleventh Circuit.
No. 94-8984.
UNITED STATES of America, Plaintiff-Appellee,
v.
John D. BRANT, Defendant-Appellant.
Aug. 25, 1995.
Appeal from the United States District Court for the Southern
District of Georgia. (No. 6:94-00007-CR-01), B. Avant Edenfield,
Chief Judge.
Before KRAVITCH, EDMONDSON and BARKETT, Circuit Judges.
PER CURIAM:
Brant appeals from a 188-month sentence imposed for
manufacturing marijuana. Invoking the Fifth Amendment and the
Eighth Amendment, he challenges the sentence. Because the career
offender provisions of the Sentencing Guidelines, which led to
Brant's sentence, violate neither the Fifth nor the Eighth
Amendments, we affirm.
Brant pled guilty to one count of manufacturing marijuana in
violation of 21 U.S.C. § 841(a)(1). He conceded that he could be
held accountable for 100 plants. His criminal record included
earlier state court convictions for (i) growing marijuana with
intent to distribute; (ii) selling marijuana; (iii) armed
robbery; and (iv) escape. The probation office applied the career
offender provisions set forth at U.S.S.G. § 4B1.1 to determine his
guideline range. Application of section 4B1.1 increased Brant's
total offense level from 23 to 31 and his Criminal History Category
from IV to VI. The low end of his guideline range under section
4B1.1 increased from 70 to 188 months.
Brant says that the application of the career offender
provisions violated the Eighth Amendment prohibition against the
imposition of cruel and unusual punishment. He argues that the
sentence is (i) disproportionate to the offense; and (ii)
excessive when compared to the sentences imposed for other federal
crimes and for drug trafficking crimes under state law.
In non-capital cases, the Eighth Amendment encompasses, at
most, only a narrow proportionality principle. Harmelin v.
Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)
(upholding mandatory non-parolable life sentence imposed upon
accused convicted of possessing more than 650 grams of cocaine).
Before Harmelin, we considered three elements in analyzing
proportionality arguments: (1) the gravity of the offense and the
harshness of the sentence; (2) the sentences imposed on other
criminals in the same jurisdiction; and (3) the sentences imposed
for commission of the same crime in other jurisdictions.
McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir.1992) (citing
Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637
(1983)), cert. denied, --- U.S. ----, 113 S.Ct. 1423, 122 L.Ed.2d
792 (1993). But, this Court, construing Harmelin, recently
modified the three factor Solem test. Id. The new test directs
the reviewing court to consider the remaining Solem factors only if
the court has first made a threshold determination that the
sentence imposed is grossly disproportionate to the offense. Id.
(approving reasoning of McGruder v. Puckett, 954 F.2d 313 (5th
Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 146, 121 L.Ed.2d 98
(1992)).
The Supreme Court has squarely rejected an Eighth Amendment
challenge to a 40-year sentence imposed under Virginia law for
possession of nine ounces marijuana. Hutto v. Davis, 454 U.S. 370,
371-375, 102 S.Ct. 703-704-06, 70 L.Ed.2d 556 (1982). More
recently, under the newly modified Solem test, we have rejected an
Eighth Amendment challenge to the mandatory life sentence
provisions of 21 U.S.C. § 841(b)(1). See United States v. Willis,
956 F.2d 248, 251 (11th Cir.1992) (cocaine offense); see also
United States v. Diaz, 26 F.3d 1533, 1545 (11th Cir.1994) (cocaine
offense), cert. denied, --- U.S. ----, 115 S.Ct. 952, 130 L.Ed.2d
895 (1995). In the light of these precedents, the 15.66 year
sentence imposed in this case is not sufficiently disproportionate
to the offense to trigger application of the remainder of the Solem
analysis. The Eighth Amendment has not been violated.
Brant also argues that the career offender provisions violate
the Due Process and Equal Protection Clauses of the Fifth
Amendment. He contends that the provisions are irrational and
arbitrary because a defendant with a more extensive criminal record
could have a lower Criminal History Category, while a "mega-farmer"
convicted of growing 10,000 marijuana plants would have the same
offense level.
Although this Court has not specifically addressed U.S.S.G. §
4B1.1, we have held that a similar provision, section 4B1.4 (armed
career criminal) violates neither due process nor equal protection.
See United States v. Johns, 984 F.2d 1162, 1164 (11th Cir.1993).
"The career offender scheme of using a defendant's criminal record
in considering both his offense level and his criminal history
under the Sentencing Guidelines bears a rational relationship to a
legitimate governmental purpose—"to prevent repeat offenders from
continuing to victimize society.' " Johns, 984 F.2d at 1164
(quoting United States v. John, 936 F.2d 764, 766 n. 2 (3rd
Cir.1991). Brant's due process and equal protection claims are
unpersuasive.
AFFIRMED.